1991 PLP (C (PLC(CS))

Keeping in view all the facts produced before the undersigned, record made available, reply to the show-cause notice and personal hearing etc. I, Muhammad, Superintending Engineer, Elecy, WAPDA, Jhang Circle, Jhang being competent authority under West Pakistan WAPDA Employees (E & D) Rules, 1978 applicable to him, am constrained to terminate his services with immediate effect. He will not be entitled to draw anything over and above the subsistence allowance already paid to him during suspension period. (Sd.) Superintending Engineer, Elecy, WAPDA, JHANG CIRCLE, JHANG."

10. It can be clearly seen from this order that it is based on the Inquiry Officer's report dated 30-5-1979, where he is said to have remarked "that the prosecution has proved his case to a great extent." It further says that the Inquiry Officer held him guilty of the charges. The report which has been made a basis for the impugned order makes an interesting reading. It is to the following effect: "Findings in the Departmental enquiry against Mr. Sarfraz Khan, LDC, Revenue Office. WAPDA, Jhana. Mr. Sarfraz Khan, L D C Revenue Office WAPDA Jhang has been charge-sheeted on the following charges of misconduct, forgery etc. by R.O.Jhang: (a) That while posted a Lower Division Clerk in the office of Revenue Officer (Power) Wapda, Jhang you are found in the following acts of omissions and commissions. The detail of forged cash entries made by you in the ledger is given below:- Sr.No Account No. Date Account of Bank scroll Amount as Posted in the ledger. Difference 1 C-54/2/1 28-7-76 587.04 5587.04 5000.00 2 --do-- 28-8-76 42.62 10042.62 10000.00 3 --do-- 28-10-76 910.52 10910.52 10000.00 4 7/356 30-5-77 Bogus 188.76 188.76 5 Qs-14/1/1 28-5-77 --do-- 301.11 301.11 6 SD-28 26-2-77 5.53 95.59 90.00 7 --do-- 28-4-77 1.14 101.14 100.00 8 3/419/TW 24-2-77 Bogus 386.63 386.63 9 3/450/TW 24-1-77 --do-- 789.90 789.90 10 --do-- 27-4-77 3.70 383.70 380.00 11 MB-25/I 24-1-77 49.35 349.35 300.00 12 --do-- 21-2-77 94.96 394.96 300.00 13 --do-- 26-3-77 33.34 333.34 300.00 14 --do-- 25-4-77 1.41 270.41 269.00 15 --do-- 25-5-77 35.63 235.63 200.00 16 3/419/TW 30-5-77 9.91 329.91 320.00 17 --do-- 29-3-77 9.37 114.12 104.75 (b) Besides, you have admitted in writing in this office on 21-8-1977 that you have given the guidelines to your successor Mr. Majeed Ahmad, L D C and assisted him in playing the foul game after being in league with the consumers." The explanation of the accused official to the charge-sheet was found to be unsatisfactory by the Competent Authority hence this inquiry was initiated against him. This enquiry has been conducted according to the West Pakistan Wapda (E&D) Rules, 78. 'The prosecution has produced one P.W. Mr. Muhammad Din, C C A in support of its case. Mr. Muhammad Din, C C A, Revenue Office, Chiniot has stated as follows: Mr. Ghulam Rasool (C C A) Sr. Clerk had checked various accounts in various routes and found certain irregularities. The details of those accounts had been given in Exh.PA. I have seen ledger Book Exh. PC and have seen his entries on various accounts in which certain irregularities had taken place and he has pointed out these irregularities. I have worked with Mr. Ghulam Rasool Sr. Clerk for about 12 years and I identify his handwriting and signatures the total discrepancies comes to Rs. 29,030.15. The forged amounts have been recovered from the consumers and thus the Authority has sufferred no financial loss. According to my knowledge charge (b) in Exh. PA is also correct as he had given guidelines to his successor Mr. Majeed Ahmad, LDC and assisted him in playing the foul game after being in league with the consumers: The accused official did not produce any defence witness but submitted factor against Mr. Sarfraz Khan, LDC/LKBC is his own clerk confessional statement before R.O. Jhang in which he has also involved with him Mr. Majeed Ahmad, LDC/LKBC. Being a new and in experienced hand he has also requested for pardon. After thoroughly going through the file it is evident that the prosecution has proved its case to a great extent and I hold Mr. Sarfraz Khan accused official guilty of the charge. (Sd.) Syed Ishrat Ali, ENQUIRY OFFICER, WAPDA LAHORE"

11. It is evident from the report that in so far as the first charge goes, it is based on the solitary statement of Mr. Muhammad Din C.C. Assistant. It will be worthwhile to reproduce this statement. It is as follows: "PW 1 on S.A. Muhammad Din, C.C. Asstt: Office of the R.O.(P) Chiniot. Mr. Ghulam Rasool, Sr, Clerk (C.C.C.) had checked various accounts in various routes and found certain irregularities. The details of those accounts had been given in Exh. PA. I have seen Ledger Book Exh. PC and have seen his entries on various accounts in which certain irregularities had taken place and he has pointed out these irregularities. I have worked with Mr. Ghulam Rasool Sr. Clerk for about 12 years and I identify his handwriting and signatures. The total discrepancies comes to Rs. 29,030.15. The forged amount have been recovered from the consumers and thus the Authority has suffered no financial loss. , According to my knowledge charge (b) in Exh. PA is also correct as he had given guidelines to his successor Mr. Majeed Ahmad, LDC and assisted him in playing the foul game after being in league with the consumer."

12. It is clear from this statement that Mr. Muhammad Din was not a witness of what is alleged to have been done by the appellant in the performance of his duties as Ledger keeper. What the witness has stated is that Mr. Ghulam Rasool, Senior Clerk (C.C.C.) had checked various accounts in various routes and found certain irregularities. It appears from the statement that the witness was examined only to identify Mr. Ghulam Rasool's handwriting and signatures. It is thus clear that his statement does not carry the prosecution's case anywhere. He only identified the handwriting and signature of Mr. Ghulam Rasool, who in accordance with the prosecution's case is said to have checked the accounts maintained by the appellant and found certain irregularities. Under the circumstances, this Ghulam Rasool was a very material witness and 1 fail to understand as to why he was not examined in support of the case. From the record we do not find any explanation of the Inquiry Officer's failure to procure his attendance.

13. These considerations apart, even otherwise, the statement of Mr. Muhammad Din as also that of Mr. Ghulam Rasool, if at all it had been there, without any corroboration would not be of any avail to the prosecution under the circumstances of this case, which shows that both these persons were involved as accused alongwith the appellant in the case of embezzlement and commission of irregularities. This is clearly borne out from the report of inquiry committee constituted earlier by the Chief Engineer (Electricity) WAPDA, Faisalabad by his office order dated 12-2-1978 regarding irregularities in the Revenue Office (Electricity) WAPDA Jhang. In this report, both these persons have been mentioned as accused alongwith the appellant and M/s. Abdul Ghani, U.D.C. and Ishaque Khan Assistant. It hardly requires any emphasis that the uncorroborated testimony of co-accused is by no means sufficient to support a finding of guilt.

14. Even in respect of second charge, reliance on behalf of the prosecution is on the solitary statement of Muhammad Din, Current Cash Assistant. What he stated before the Inquiry Officer was that "according to his knowledge, charge (b) in Exh. PA is also correct as he had given guide-lines to his successor Majeed Ahmad, LDC and assisted him in playing the foul game after being in league with the consumers." It is evident that the statement is verbatim reproduction of the phraseology of the charge and I am inclined to believe that he was made to repeat the allegations levelled in the charge-sheet and it is not possible to say that the statement has got any evidentiary value.

15. This aspect of the matter apart, the statement proves nothing, even if it is taken on merits. All what the witness has stated is that according to his knowledge charge (b) in Exh. PA is also correct. He did not say that he was present at the time when the appellant was giving guide-lines to his successor. It is not clear from the statement that the witness testified to his own personal knowledge and that his statement is not the result of hearsay. I say so because his knowledge can either be the result of his presence at the relevant time or hearsay. This being the situation, I do not feel any hesitation in saying that it was hardly sufficient to promote the prosecution's case. The Inquiry Officer did not examine the witness on how he derived this knowledge and it is difficult to hold that his statement was admissible.

16. There is another aspect of the matter. Even if the statement be regarded as reliable, which I am not prepared to do for the aforementioned reasons, it will hardly make any difference, considering that evidence in support of an ambiguous charge will establish nothing but ambiguity.

17. It is in the report that "the most important factor against Mr. Sarfraz Khan LDC/LKBC is his own clear confessional statement before the Revenue Officer, Jhang in which he has also involved with him Mr. Majeed Ahmad LDC/LKBC" and that "being a new and inexperienced hand he has also requested for pardon:" It is thus clear that in returning a finding of guilty, the Inquiry Officer has been primarily influenced by the confessional statement alleged to have been made by the appellant before the Revenue Officer, Jhang. As we see from the record, in his explanation in writing (Annexure 3), it was pleaded by him that the alleged confessional statement was obtained by Mr. Bashir-ud-Din Qureshi, Revenue Officer under duress as a result of threat. He denied having guided Mr. Majeed Ahmad in any manner. I feel that in view of this denial, the Inquiry Officer should have examined. Mr. Bashir-ud-Din Qureshi to determine whether the appellant's statement was the result of coercion or he made it of his own volition. This has not been done and I feel no hesitation in saying that there was no justification for jumping to the conclusion that he made a' confessional statement; which is in addition to the reason that the previous statement in writing submitted to the Revenue Officer was before the initiation of the disciplinary proceedings and it did not have any evidentiary value in so far as the proceedings of the inquiry Officer were concerned. It could not be made a basis for the finding of guilty without examination of the concerned witnesses, which is to say the least.

18. Leaving aside this aspect of the matter, there seems to be substance in the allegation that the confessional statement was not voluntary. He gave an explanation in writing to the Revenue Officer on 21-8-1977. As it can be seen, he made an attempt to exonerate himself of the charge in the statement as it originally stood. He denied in clear words that he was responsible for any irregularity. It appears that the appellant was made to make certain additions in his statement in writing by interpolation. The statement that "I confess that I guided Mr. Majeed Ahmad in this respect" is in different ink and handwriting. Likewise, the last portion of the statement to the effect that "I assure your good self that this was my first mistake and that I will not commit any such mistake in future and that you will forgive me by showing large heartedness and taking pity" is also in different ink and handwriting. Even if it may not be so, I am in no doubt whatsoever that these statements were subsequently ridded in the statement prepared by the appellant and that they clearly appear to be out of context. This circumstance can lead us to no conclusion but that the alleged confessional statement was not the result of appellant's volition. This being so, it could not possibly, without outrage on principles of fair play and natural justice, provide the Inquiry Officer with a basis for a finding that the accused was guilty of alleged irregularities.

19. Therefore, on the basis of these considerations, it will have to be held that the Inquiry Officer's report provided the competent authority with nothing to proceed against the appellant and pass the impugned order of termination of services. We may add to it the Inquiry Officer's observation that "the prosecution has proved its case to a great extent", which shows that he was not on a sure footing in holding him guilty of the charge and that the report was just casual and perfunctory in character and causing an impression as if he was bound to make it.

20. Before taking leave of the matter, we may deal with the preliminary objection regarding limitation. As we have noticed in the facts of the case, the appellant challenged the validity of the impugned order in a grievance petition under section 25-A of the Industrial Relations Ordinance before the Labour Court concerned on 15-10-1979. The respondents filed a written reply (Annexure VI) where the petition does not appear to have been defended on the ground of jurisdiction. It was, however, dismissed by the Labour Court on 28-8-1980. The appellant successfully challenged the validity of Labour Courts' order on 2-10 1980 before the Punjab Labour Appellate Tribunal which set aside the impugned order on 19-5-1982, with a direction that he should be reinstated in service. The respondents' writ petition dated 6-7-1982 against this order before the High Court was accepted on 21-4-1984, and it was held that the Labour Appellate Tribunal's order was without lawful authority. The appellant then came to this Tribunal on 9-6-1984, within one month of the rejection of his departmental appeal on 28-5-1984. Since there was confusion regarding the question of jurisdiction at the relevant time, the appellant had been prosecuting his matter before a wrong forum in good faith. Under similar circumstances, delay in filing appeals has been condoned by this Tribunal in many cases. I am of the view that the circumstances of this case would justify similar treatment and the delay is accordingly condoned.

21. For the reasons mentioned above, the appeal is accepted and the impugned order dated 1-9-1979 is set aside. The respondents shall reinstate the appellant in service with full back benefits. They will, however, be within legal authority to start disciplinary proceedings against the appellant afresh from the stage whence the mistake can be rectified. There will, however, be no order as to costs.

22. Parties to be informed. M.Y.H./553/Sr.F Appeal accepted.